LUBA then turned to intervenors' second cross-assignment of error. In that
cross-assignment of error, intervenors argued that, even if the county amended its plan
and added Beaver State's site to its list of nonsignificant aggregate sites, the site still
would not be eligible for a conditional use mining permit under ORS 215.298. Beaver
State responded initially that intervenors' argument was premature because it had only
applied to have the site added to the county's list. On that issue, LUBA reasoned:

"We disagree with [Beaver State's] initial argument, that the issue of
whether the county can approve a conditional use permit to allow mining
the subject property, once it is added to the county's list of non-significant
sites, is premature. As noted, the premise of [Beaver State's] application,
and the county's proceedings on that application, was that the legal effect of
adding the subject property to the county's list of non-significant aggregate
sites is that [Beaver State] may then seek approval to mine the site, pursuant
to the statute. The county's decision denies the application, based on the
perceived impacts of mining the subject property under the statute. Under
these circumstances, it is inaccurate to characterize [Beaver State's]
application as simply one to add the subject site to the county's '1A' list."

Beaver State argued alternatively that, even if the issue were properly
before LUBA, intervenors' interpretation of ORS 215.298 was incorrect. On that issue,
LUBA reasoned that, when the legislature enacted ORS 215.298 and authorized
aggregate mining permits "only for a site included on an inventory in an acknowledged
comprehensive plan," the relevant rules provided that nonsignificant or "1A" sites should
not be included on an inventory. LUBA accordingly concluded that ORS 215.298 did not
authorize local governments to issue mining permits for nonsignificant aggregate sites.
Under the rules in place when the legislature enacted ORS 215.298, those sites would not
have been "included on an inventory" within the meaning of ORS 215.298.

Beaver State has petitioned for review of LUBA's decision, and the
Department of Land Conservation and Development (DLCD) has intervened in support of
Beaver State. On review, both Beaver State and DLCD limit their arguments to LUBA's
resolution of intervenors' second cross-assignment of error. Beaver State argues initially
that LUBA's interpretation of ORS 215.298(2) was an improper advisory opinion. Beaver
State and DLCD argue next that, if the meaning of that statute were properly before
LUBA, LUBA erred in concluding that the phrase "included on an inventory" is limited to
an inventory of significant aggregate sites. Intervenors respond that the statutory
interpretation issue was properly before LUBA because ORS 215.298, properly
interpreted, could affect the county's decision on remand. On the merits, intervenors
argue that LUBA correctly looked to the Goal 5 rules in place when the legislature
enacted ORS 215.298 to determine that the phrase "included on an inventory" was not
intended to refer to nonsignificant Goal 5 sites.

The text of ORS 197.835 does not explicitly limit LUBA's authority in the
way that Beaver State perceives. But even if the text implicitly imposed that limitation,
the issue that LUBA resolved is relevant to the county's proceedings on remand. In
deciding whether to place the site on its "1A" list, the county appears to have understood
that it was required to analyze the listing as if a conditional use mining permit might be
issued at some time in the future. If LUBA's interpretation of ORS 215.298(2) is correct,
the issue before the county on remand changes from a decision that requires consideration
of additional land use goals because the site would be eligible for a conditional use permit
to one that, from a land use permit perspective, has no legal significance. Because the
resolution of that issue is necessary in order to properly define the criteria the county may
consider in making its decision on remand, the interpretation of ORS 215.298(2) was
properly before LUBA. SeeJohnson v. City of La Grande, 167 Or App 35, 45, 1 P3d
1036 (2000) (recognizing that a court may provide guidance for local government on
remand from LUBA); Collins v. Klamath County, 148 Or App 515, 518, 941 P2d 559
(1997) (same). We accordingly turn to LUBA's interpretation of ORS 215.298.

We review LUBA's interpretation of ORS 215.298 for errors of law, Kelley
v. Clackamas County, 158 Or App 159, 165, 973 P2d 916 (1999), and begin by
examining that statute's text and context, PGE v. Bureau of Labor and Industries, 317 Or
606, 610-11, 859 P2d 1143 (1993). ORS 215.298(1) identifies when a land use permit is
necessary to mine aggregate on EFU land. ORS 215.298(2), the subsection at issue in
this case, establishes which aggregate sites are eligible for mining permits. It provides
that "[a] permit for mining of aggregate shall be issued only for a site included on an
inventory in an acknowledged comprehensive plan." The text of ORS 215.298(2) makes
clear that, in order for Beaver State to get a permit to mine aggregate on a site, the site
must be "included on an inventory in an acknowledged comprehensive plan." The text,
however, leaves open the question what the phrase "included on an inventory" was
intended to encompass. The statute's context answers that question. PGE, 317 Or at 611
(at the first level, a court examines both text and context).

"Based on data collected, analyzed and refined by the local
government, as outlined [in OAR 660-016-0000(1)-(4)], a jurisdiction has
three basic options:

"(a) Do Not Include on Inventory: Based on information that is
available on location, quality and quantity, the local government might
determine that a particular resource site is not important enough to warrant
inclusion on the plan inventory, or is not required to be included in the
inventory based on specific Goal standards. No further action need be
taken with regard to these sites. The local government is not required to
justify in its comprehensive plan a decision not to include a particular site in
the plan inventory unless challenged by [DLCD], objectors, or [LCDC]
based upon contradictory information;

"(b) Delay Goal 5 Process: When some information is available,
indicating the possible existence of a resource site, but that information is
not adequate to identify with particularity the location, quality and quantity
of the resource site, the local government should only include the site on the
comprehensive plan inventory as a special category. The local government
must express its intent relative to the resource site through a plan policy to
address that resource site and proceed through the Goal 5 process in the
future. The plan should include a time-frame for this review. Special
implementing measures are not appropriate or required for Goal 5
compliance purposes until adequate information is available to enable
further review and adoption of such measures. The statement in the plan
commits the local government to address the resource site through the Goal
5 process in the post-acknowledgment period. Such future actions could
require a plan amendment;

"(c) Include on Plan Inventory: When information is available on
location, quality and quantity, and the local government has determined a
site to be significant or important as a result of the data collection and
analysis process, the local government must include the site on its plan
inventory and indicate the location, quality and quantity of the resource site
* * *. Items included on this inventory must proceed through the remainder
of the Goal 5 process."

OAR 660-016-0000(5) (boldface added).

When the legislature enacted ORS 215.298, OAR 660-016-0000(5)
specified which sites should and should not be included on a "plan inventory," i.e., on the
inventory that will be included in a local government's comprehensive plan. More
particularly, subsection (5)(a) told local governments, "Do [n]ot [i]nclude" nonsignificant
sites in a comprehensive plan inventory. Cf. Williams v. LCDC

, 154 Or App 195, 202,
961 P2d 269 (1998) (explaining that, under OAR 660-016-0000, a local government
"determines which sites are significant and includes those sites in its inventory"). It
follows that, when the legislature provided in ORS 215.298 that permits for mining
aggregate "shall be issued only for a site included on an inventory in an acknowledged
comprehensive plan," it understood that nonsignificant aggregate sites would not be
"included on an inventory" in a local government's comprehensive plan and thus would
not be eligible for a mining permit. (Emphasis added.) We accordingly agree with
LUBA that ORS 215.298(2), read in the context of OAR 660-016-0000(5), precludes
issuing a mining permit for a nonsignificant aggregate site.

Beaver State and DLCD advance a number of arguments in support of a
different conclusion. First, they argue that LUBA has inserted what the legislature
omitted. They note that the statute authorizes a mining permit "only for a site included on
an inventory in an acknowledged comprehensive plan." They argue that LUBA's
interpretation impermissibly adds the phrase "of significant Goal 5 resources" after the
word "inventory." That argument fails to recognize that, standing alone, the text of ORS
215.298(2) is ambiguous. ORS 215.298(2) authorizes permits for sites that are "included
on an inventory in an acknowledged comprehensive plan," but it does not specify which
sites should and should not be included on that inventory. OAR 660-016-0000(5)
resolves that question. LUBA did not insert what the legislature omitted; rather, it
properly looked to context to resolve a textual ambiguity.

Second, Beaver State argues that we should not assume that the legislature
was aware of LCDC's rule when it enacted ORS 215.298. The legislature, however,
delegated authority to LCDC to adopt rules necessary to implement the broad land use
policies established by the legislature. Lane County, 325 Or at 581-82. Given LCDC's
integral role in the land use process, the Supreme Court has recognized that LCDC's rules
serve as context for later legislative enactments. Id. at 578 (explaining that the context of
ORS 215.304 included LCDC's regulations).

Third, Beaver State and DLCD argue that LUBA has misinterpreted OAR
660-016-0000(5). Beaver State reasons: "Clearly the rule does not prevent local
governments from including [nonsignificant sites] in a comprehensive plan inventory--Douglas County has such an inventory, labeled 'Douglas County Mineral Resources
Inventory,' that lists sites 'not important enough' to receive protection under Goal 5."
DLCD makes a similar argument. Beaver State and DLCD's third argument appears to be
based on two separate propositions. The initial proposition is that the legislature would
have understood from the text of OAR 660-016-0000(5) that an inventory in a
comprehensive plan can include nonsignificant sites. The text of the rule, however, says
precisely the opposite. It tells local governments, "Do not include" nonsignificant sites in
a plan inventory. See OAR 660-016-0000(5)(a). Neither Beaver State nor DLCD
identifies anything in the rule that reasonably would have put the legislature on notice of
the rule interpretation that they advance.

The alternative proposition underlying Beaver State and DLCD's third
argument appears to be that, despite what the rule says, nonsignificant sites have in
practice been included on some inventories in acknowledged comprehensive plans. The
question before us, however, is what the legislature intended when it enacted ORS
215.298(2). In the absence of some legislative history showing that the legislature was
aware of the practice (whatever it may have been), that practice has no bearing on the
legislature's intent. Neither Beaver State nor DLCD identifies any legislative history that
would support their position.

Fourth, Beaver State argues:

"LUBA's interpretation that ORS 215.298(2), 'allows mining in EFU
zones only if the site is included on a county's Goal 5 mineral resources
inventory,' and that 'the "final plan inventory" was intended for significant
sites,' conflicts logically and textually with its admission in footnote 21 * *
* that the word '"inventory" in ORS 215.298(2) includes the "special
category" of "1B" sites in the county's inventory.'"

That argument misses the mark in two respects. The question that Beaver State notes
involves "1B" sites--sites that, for lack of information, a local government cannot classify
as either nonsignificant or significant when it compiles its inventory. Whether "1B" sites,
as well as "1C" sites, are "included on an inventory" within the meaning of ORS 215.298
is irrelevant to whether "1A" sites, the issue presented here, also come within that phrase.
Whatever tension exists regarding "1B" sites, it does not advance Beaver State's position.

Moreover, the terms of OAR 660-016-0000(5)(b) resolve any tension. That
subsection provides that, when there is insufficient information "to identify with
particularity the location, quality and quantity of the resource site, the local government
should only include the site on the comprehensive plan inventory as a special category."
OAR 660-016-0000(5)(b). That subsection also provides that, in the post-acknowledgment period, the local government will address the "1B" site and proceed
through the Goal 5 process. Put another way, the rule contemplates that, within a
specified time, the local government will acquire sufficient information to determine
whether the "1B" site should be downgraded to a "1A" or nonsignificant site or upgraded
to a "1C" or significant site and listed as a protected resource on the inventory. There is
nothing inconsistent in LUBA's recognition that "the 'final plan inventory' was intended
for significant sites" and the fact that the rule provides that both "1B" and "1C" sites
should be included on an inventory. If local governments follow the process set out in
OAR 660-016-0000(5)(b), only significant sites will be included on the final plan
inventory. See OAR 660-016-0000(1); Williams, 154 Or App at 202 (explaining that the
local "government determines which sites are significant and includes those sites in its
inventory").

"For the purposes of ORS 215.213(2) and 215.283(2), a land use
permit is required for mining more than 1,000 cubic yards of material or
excavation preparatory to mining of a surface area of more than one acre."

Taken together, those statutes create a legislative land use policy that requires a permit in
order to mine aggregate on EFU land, if the mining operation is over an acre or will mine
more than 1,000 cubic yards of material. Under this statutory scheme, a site that meets
the requirements of the regulation is deemed a "significant" aggregate resource and is
placed on a local government's plan inventory. If that "significant" site exceeds the size
and quantity limitations in the statute, a permit is needed before mining operations may
take place. As a result, LUBA's interpretation does not nullify ORS 215.298(2), ORS
215.283(2)(b)(B), or ORS 215.213(2)(d)(B); it merely identifies the type of sites, those
determined "significant" and placed on a local government's acknowledged
comprehensive plan inventory, that are eligible for a permit to mine aggregate on land
zoned EFU.

In sum, we hold that the interpretation of ORS 215.298(2) was properly
before LUBA in this case. We also hold that LUBA's interpretation of the statute is
consistent with the text and context of the statute. LUBA did not err in determining that
nonsignificant aggregate sites are not eligible for a conditional use permit under ORS
215.298(2).

Affirmed.

1. In 1996, seven years after ORS 215.298 was enacted, a new Goal 5 rule was
promulgated, which partially supersedes the old rule. See OAR 660-023-0000 - 660-023-0250.

3. This portion of LUBA's decision involved the new Goal 5 rule. See n 1
above. Under OAR 660-023-0180(3)(d)(B), an aggregate site in Douglas County cannot
be "significant" if 35 percent or more of the proposed mining area has Class II soils, or a
combination of Class II, Class I, or Unique soil on NRCS maps.

4. The county's comprehensive plan contains an inventory of nonsignificant
aggregate resources. Beaver State contends, and the county appears to have assumed
below, that Beaver State could apply for a conditional use permit to mine the aggregate if
the county would amend its comprehensive plan and add Beaver State's site to its list of
nonsignificant sites.

5. ORS 197.835 provides, in relevant part: "The Land Use Board of Appeals
shall review the land use decision or limited land use decision and prepare a final order
affirming, reversing or remanding the land use decision or limited land use decision."